Walmart, CVS must face lawsuit over placement of homeopathic products

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Homeopathic remedies don’t belong in medicine aisle, Center for Inquiry says

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D.C.’s top court revives claims under consumer protection law

By Barbara Grzincic

(Reuters) -

The District of Columbia’s highest court revived two lawsuits that claim CVS and Walmart are misleading consumers by selling unproven homeopathic products alongside FDA-approved over-the-counter medicines on their store shelves and websites.

The District of Columbia Court of Appeals on Thursday reversed lower-court rulings against the nonprofit Center for Inquiry (CFI), which alleged that CVS Pharmacy and Walmart are violating Washington, D.C.’s Consumer Protection Procedures Act by implying that homeopathic remedies and scientifically proven medicine are equally effective alternatives.

On a question of first impression for the District, the Court of Appeals found that the use of “misleading product placements” and signage are unfair trade practices under the consumer protection law. And, while CFI may need more evidence to prove its case on remand, “at this juncture, we cannot say that (its allegation) is implausible,” Senior Appeals Judge Phyllis Thompson wrote for the panel.

Walmart spokeswoman Abby Williams-Bailey said the company disagreed with the Court of Appeals. “We are continuing to review the Court’s decision and weighing our options for further appellate review,” she said in an email.

CVS and its attorneys did not immediately respond to requests for comment.

CFI Legal Director Nick Little, who argued the consolidated appeals, hailed Thursday’s decision while recognizing that the case is a long way from over.

“The D.C. Court of Appeals has given us the chance to prove that what the retailers have done is fraudulent, and now it's our job to prove it to a jury,” he said.

Even so, Thursday’s decision “put retailers of drugs across the country in notice that they can be held responsible for the message they send by how they sign and display fake alternative medicine,” Little added in an email. “Our goal is to ensure that all retailers stop this misrepresentation.”

Thursday’s decision also establishes that CFI has standing to sue under D.C.’s law, which expressly authorizes suit by a “nonprofit organization … organized and operating, in whole or in part, for the purpose of promoting interests or rights of consumers.”

The lower courts found CFI did not meet that description, since it was suing on behalf of the “general population” in order to “foster a society free of … pseudoscience.”

The Court of Appeals, however, said the two goals were not inconsistent, and that CFI “at least in part, is both organized and operates to promote the interests of those who would be consumers of ‘ineffective’ homeopathic products.”

The consolidated cases are Center for Inquiry Inc. v. Walmart Inc. and CVS Pharmacy Inc., D.C. Court of Appeals, Nos. 20-CV-392 and 20-CV-530.

For Center for Inquiry: Nicholas Little of CFI

For Walmart: Christina Sarchio of Dechert; Matthew Kirtland, Jeffrey Margulies, and Katherine Connolly of Norton Rose Fulbright

For CVS Pharmacy: Jeanne Gills and Lauren Champaign of Foley & Lardner